Rapport définitif - Rapport No. 336, Mars 2005

1. 824. The complaint is contained in a communication from the National Federation of Secondary School Teachers (FENAPES) and the Association of Secondary Education Teachers (ADES) dated June 2004. In a communication dated July 2004, these organizations sent additional information.
2. 825. The Government sent its observations in a communication dated 28 December 2004.
3. 826. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 827. In their communication of June 2004, the National Federation of Secondary School Teachers (FENAPES) and the Association of Secondary Education Teachers (ADES) allege that the freedom of association and trade union rights of one of its officials, Mrs. Silvia Lujambio, deputy head of an educational establishment (Liceo No. 13) had been infringed.
2. 828. The complainant organizations state that in Uruguay, the career path of teachers in secondary education is based on advancement, by what the statutory rules call “qualified seniority”, i.e., the allocation of a general points score based on length of service, computed activity (number of classes actually taught) and teaching skills, i.e., the teachers’ training, judgements and assessments. The latter concept, teaching aptitude, has the highest weighting in calculating the points score for “qualified seniority” (100 out of 140). In turn, one of the most important factors in teaching aptitude are assessments contained in an annual report by heads of educational establishments (liceos) and by subject inspectors.
3. 829. They indicate that this has meant that, at times, these annual reports are used by the hierarchy as means of controlling the teacher’s adaptability to the imposed models. In other words, the annual report on the teacher is used not to evaluate his technical and pedagogical performance but to reward or censure the teachers’ ideological conformity with the model, plan or simply the profile required by the school programme drawn up by the management. In other words, a dangerous manipulation can be observed of a highly sensitive aspect of professional life in the context of a relationship not of respect and tolerance, but of authority. This has left members of the complainant organizations highly vulnerable in respect of the educational reforms which were rejected or denounced by their trade unions. Even more serious, however, according to the complainants, is that the method complained of here has begun to be used directly to suppress the exercise of trade union rights.
4. 830. The FENAPES and ADES allege that this has occurred with the trade union official, Mrs. Silvia Lujambio, at the time of her annual report as deputy head by the head of the educational establishment where she is employed (Liceo No. 13). The complainants state that she was the victim of a clear anti-trade union posture which infringes her legal rights and entitlements, forcing the trade union to intervene and present this complaint. All this is aggravated by the fact that it is not just hindrance or obstruction of the exercise of such rights, including the imposition of sanctions for exercising them, but simply that for participating in trade union activity, especially as an official, a person’s technical and pedagogical performance is assessed unfavourably.
5. 831. The complainants indicate that the abovementioned report on the official in question, includes remarks such as the existence of “circumstantial observations”, “for attending an ADES meeting in the staff room and not communicating” and in the “general opinion” on the teacher, it is stated: “teacher who should perform her work impartially, and keep her work separate from her trade union activity”. It is clear that, because she was an official, Mrs. Lujambio’s performance was assessed unfavourably compared with the average of her assessments for recent years and in comparison with her peers.
6. 832. The complainants state that this matter has caused alarm in teacher trade union circles, alarm which reflects the nature of the rights infringed. This is because it shows a disregard for the fundamental rights which by their nature go beyond this member’s particular situation. The fact is that an observation amounting to disciplinary censure was made in an assessment of technical performance because of Mrs. Lujambio’s participation as an official in a trade union meeting.
7. 833. The complainants state that the situation of which they complain shows a clear disregard for the exercise of trade union rights and thereby violates article 57 of the Constitution of the Republic and ILO Conventions Nos. 98 and 151. Finally, they state that a complaint was also made to the Secondary Education Council, a public body responsible for the administration of the education system at secondary level.
8. 834. In its communication of July 2004, the complainant organizations report that the trade union official in question, under the provisions of article 55 of the Teaching Staff Rules, exercised the right of rebuttal concerning the assessment made, on the grounds that it infringed her legitimate right to freedom of association and trade union rights as well as her professional career. According to the complainants, the management report and the trade union official’s rebuttal should have resulted in the convening of an assessment panel to settle the dispute. Until now, this panel has not taken action. It further adds that despite the seriousness of the complaint, neither has the Secondary Education Council of the National Public Education Administration made any pronouncement.

B. The Government’s reply

1. 835. In its letter of 28 December 2004, the Government states that civil servants in general and those of the central administration in particular, are subject to regulations which govern their rights, duties and obligations. Their rights include security of tenure, advancement, remuneration and administrative disciplinary proceedings with guarantees of due process, without prejudice to the right to subsequent review by the courts. These regulations are a solid guarantee for civil servants, both with regard to protection of their career path in the administration and citizens’ rights and rights of freedom of association and collective bargaining. Convention No. 151, ratified by Uruguay, is applied in full to government workers with the exception of military personnel, police, diplomatic staff and persons of a political character (ministers, directors of executing agencies, directors of autonomous entities, etc.) who are subject to different regulations by virtue of the nature of their functions. Under the terms of the Constitution, public employees enjoy adequate trade union protection.
2. 836. The Government adds that there is no general law that provides free time for the exercise of trade union duties, but in all public organizations trade union officials are granted trade union leave to carry out the tasks inherent in their office, and various collective agreements expressly provide for trade union leave.
3. 837. With respect to the annual assessment report of Mrs. Silvia Lujambio by the head of the establishment in which she works (Liceo No. 13), the Government states that, on 11 August 2004 the legal office of the Primary Education Council reported as follows: (1) the legal office is not dealing with the points score awarded to Mrs. Lujambio because it is not relevant to this case; (2) in relation to the substance of the matter, it considers that: (a) the assessment report in question contains matters which “while not constituting clear persecution” depart from the comments that a report should contain; (b) it considers that the head of the establishment should not have included in the report matters which go beyond functional (pedagogical or technical) aspects and even less should they be taken into account as positive or negative factors in her assessment; (c) the assessment must be totally objective and impartial; (d) consequently, the legal office considers that the head of the establishment should be cautioned that she should not consider matters other than functional aspects when assessing her staff; and (e) opinions such as those expressed in the report on Mrs. Lujambio may infringe the fundamental rights enshrined in the Constitution of the Republic.
4. 838. The Government adds that the Montevideo Head Teacher Assessment Board, at its meeting of 3 September 2004, concluded that the assessment made in the report in question should be rejected, and Mrs. Lujambio’s last performance report on her work in 2002 at the Liceo San Jacinto taken into account as her latest performance report.
5. 839. Finally, the Government states that the Secondary Education Council, considering the report of the legal office of 11 August 2004 and the Montevideo Head Teacher Assessment Board at its meeting on 3 September 2004, decided: “to reject the assessment made in the management report for 2003 by the Head of Liceo No. 13 on Mrs. Silvia Lujambio Grene”. “It ordered that Mrs. Lujambio’s last performance report in 2002 as deputy head at the Liceo San Jacinto should be taken into account as the latest teacher performance report”. The Government emphasizes that in the light of the foregoing reports, in its opinion there has been no violation of Conventions Nos. 98, 151 and 154.

C. The Committee’s conclusions

1. 840. The Committee observes that the complainant organizations allege that the authorities of the educational establishment, Liceo No. 13, had used the annual assessment report of Mrs Silva Lujambio, a trade union official of FENAPES and ADES, to curb the exercise of her trade union rights. Specifically, the complainant organizations allege that she was assessed unfavourably as a result of exercising her trade union activities and that a disciplinary censure was made in an assessment of technical performance because she had participated in a trade union meeting.
2. 841. The Committee notes that the Government states that: (1) The legal office stated that: (a) the assessment report in question contains matters which “while not constituting clear persecution” depart from the comments that such a report should contain; (b) it considers that the head of the establishment should not have included in the report matters which went beyond the functional (pedagogical or technical) aspects and even less should they be taken into account as positive or negative factors in her assessment; (c) the assessment must be totally objective and impartial; (d) consequently, the legal office considers that the head of the establishment should be cautioned that she should not consider matters external to the functional aspects when assessing her staff; and (e) opinions such as those expressed in the report on Mrs. Lujambio may infringe the fundamental rights enshrined in the Constitution of the Republic; (2) the Montevideo Head Teacher Assessment Board, at its meeting of 3 September 2004, concluded that the assessment made in the report in question should be rejected, taking into account Mrs. Lujambio’s last performance report in 2002 at the Liceo San Jacinto as her latest performance report; and (3) the Secondary Education Council, considering the report of the legal office, and the Montevideo Head Teacher Assessment Board decided to reject the assessment made in the management report for 2003 by the Head of Liceo No. 13 on Mrs. Silvia Lujambio Grene and ordered that Mrs. Lujambio’s last teacher performance assessment in 2002 should be taken into account.
3. 842. Observing that the annual assessment report of the trade union official, Mrs. Lujambio, which had been contested by the complainant organizations on the grounds that its contents constituted an act of anti-trade union persecution, had been rejected, the Committee considers that the present case does not require further examination.